On March 19, 2020, Governor Newsom issued an Executive Order that required all people living in California to stay at home:

To protect public health, I as State Public Health Officer and Director of the California Department of Public Health order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at:


What is a critical infrastructure sector, and which businesses fall into these categories?

The Cybersecurity and Infrastructure Security Agency’s (CISA) website sets forth critical infrastructure sectors, but is not exactly clear on which types of businesses it covers:

This document gives guidance to state, local, tribal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers. Promoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions.

The CISA lists the following sectors as essential critical infrastructure:

Chemical Sector

Commercial Facilities Sector

Communications Sector

Critical Manufacturing Sector

Dams Sector

Defense Industrial Base Sector

Emergency Services Sector

Energy Sector

Financial Services Sector

Food and Agriculture Sector

Government Facilities Sector

Healthcare and Public Health Sector

Information Technology Sector

Nuclear Reactors, Materials, and Waste Sector

Transportation Systems Sector

Water and Wastewater Systems Sector


The California COVID-19 response website provides a very clear explanation of which businesses are considered essential services and can remain open during the stay-at-home order:

What can I do? What’s open?

Essential services will remain open, such as:

  • Gas stations
  • Pharmacies
  • Food: Grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants
  • Banks
  • Laundromats/laundry services
  • Essential state and local government functions will also remain open, including law enforcement and offices that provide government programs and services.

What’s closed?

  • Dine-in restaurants
  • Bars and nightclubs
  • Entertainment venues
  • Gyms and fitness studios
  • Public events and gatherings
  • Convention Centers
  • Hair and nail salons

If your business operates on one of the exempt sectors, there is no need to obtain a letter to continue to operate from the government.  Continue to operate while still complying with the CDC, OSHA and other guidelines about safe operations (links to useful resources on this topic can be found at our prior post here).

By Anne McWilliams

As a reminder, our firm is operating and assisting employers across the state of California during these unprecedented times.  Please contact any of our attorneys to discuss any specific questions.  Here are some useful resources for California employers to keep up-to-date on the quickly developing issues here in California and across the nation:

Office of Governor Gavin Newsom

  1. Executive Order Published: March 12, 2020: https://www.gov.ca.gov/2020/03/12/governor-newsom-issues-new-executive-order-further-enhancing-state-and-local-governments-ability-to-respond-to-covid-19-pandemic/
    • Directs Californians to follow public health directives including canceling large gatherings more than 250 people
    • Order removes waiting period for unemployment and disability insurance for Californians who lose work as a result of the COVID-19 outbreak
    • Readies state to commandeer hotels & medical facilities to isolate & treat COVID-19 patients
    • Allows local and state legislative bodies to hold meetings via conference calls while still meeting state transparency requirements
  1. California Stay At Home Order Published March 19, 2020: https://www.gov.ca.gov/2020/03/19/governor-gavin-newsom-issues-stay-at-home-order/

U.S. Congress

  1. Families First Coronavirus Response Act: https://www.congress.gov/bill/116th-congress/house-bill/6201/text
  2. Zaller Law Group article on what employers need to know about the new law:


California Employment Development Department

 Unemployment Insurance: edd.ca.gov/unemployment

  1. EDD FAQs: https://www.edd.ca.gov/about_edd/coronavirus-2019.htm
  2. Employers experiencing a hardship as a result of COVID-19 may request up to a 60-day extension of time from the EDD to file their state payroll reports and/or deposit state payroll taxes without penalty or interest. A written request for extension must be received within 60 days from the original delinquent date of the payment or return.

For questions, employers may call the EDD Taxpayer Assistance Center.

Toll-free from the U.S. or Canada: 1-888-745-3886

Hearing impaired (TTY): 1-800-547-9565

Outside the U.S. or Canada: 1-916-464-3502

  1. Rapid Response Team: Employers planning a closure or major layoffs as a result of the coronavirus can get help through the Rapid Response program. Rapid Response teams will meet with you to discuss your needs, help avert potential layoffs, and provide immediate on-site services to assist workers facing job losses. For more information, refer to the https://www.edd.ca.gov/pdf_pub_ctr/de8714rrb.pdf or contact your local America’s Job Center of CaliforniaSM

California Department of Public Health – COVID-19 Daily Updates


U.S. Department of Labor – OSHA – COVID-19


California Labor Commissioner FAQs – COVID-19


California Labor & Workplace Development Agency – COVID-19 Resources for Employers and Workers


Centers for Disease Control and Prevention – COVID-19


EEOC – What You Should Know About the ADA, the Rehabilitation Act, and COVID-19


California State Franchise Board – tax relief available to California taxpayers affected by COVID-19


U.S. Small Business Administration –  COVID-19: Disaster Assistance and SBA Loan Information


California State Treasurer’s Office – California Capital Access Program for Small Business (CalCAP SB or Program)


By Michael Thompson

With many restaurants forced to close and numerous other businesses facing the prospect of laying off workers in response to the economic fallout from COVID-19, employers have to give careful attention to potential notice obligations under the federal WARN Act and its state equivalent, Cal-WARN.  WARN and Cal-WARN require employers to give 60-day advance notice to employees and government officials of certain closures and layoffs, with back pay and civil penalties for failing to give adequate notice.

Much of the focus had been on Cal-WARN because that statute lacked many of the relevant exceptions contained in the federal WARN Act which might be applicable with COVID-19.  However, on March 17, Governor Gavin Newsom signed an Executive Order implementing important temporary modifications to Cal-WARN to assist employers in the current crisis.

Here is what you need to know.

What is WARN?

The federal Worker Adjustment and Retraining Notification Act applies to employers of 100 or more full-time employees (or 100 full-time and part-time employees who work a total of 4,000 non-overtime hours per week).  A covered employer must give 60-days notice to affected employees and specified government officials before it: (i) shuts down an employment site that causes employment loss for 50 or more full-time employees; (ii) conducts a layoff that effects 50 or more employees and 33% or more of the total workforce at a single location; or (iii) lays off 500 or more employees at a single location.

Potentially relevant to COVID-19 layoffs and closures, WARN has several exceptions.  WARN does not apply to layoffs lasting less than 6 months.  Nor does WARN apply to closures or layoffs resulting from a “natural disaster.”  Finally, an employer could give less than 60 days notice in the case of a closure or layoff resulting from “business circumstances that were not reasonably foreseeable.”

What is Cal-WARN?

The California version of WARN operates similarly, but with crucial differences.  Cal-WARN applies to an employer who has employed 75 or more persons, including part-time employees, at a single industrial or commercial facility (called a “covered establishment”) within the preceding 12 months.  An employer has to give 60-days notice before (1) terminating operations at the covered establishment; (2) relocating the covered establishment’s operations more than 100 miles; or (3) laying off 50 or more employees at the covered establishment in a 30-day period.  For an employee to count as part of the 50-employee threshold, that person must have worked for the employer for at least 6 of the preceding 12 months.

Several features of Cal-WARN are less employer-friendly in the COVID-19 context.  While WARN only applied to layoffs exceeding 6 months, Cal-WARN applies to layoffs of any duration. As such, employers must comply with Cal-WARN even for a short-term layoff.  Cal-WARN has an exception for “physical calamity or act of war,” but it is uncertain whether a pandemic would qualify as a physical calamity.  Prior to the Governor’s Executive Order, Cal-WARN had no express exception for unforeseen business circumstances.

What does the Executive Order Change About Cal-WARN

Governor Newsom’s Executive Order, which applies from March 4, 2020, through the end of the declared State of Emergency, suspends the 60-day notice requirement of Cal-WARN for employers who meet certain conditions:

  1. The employer gives the required notices to the affected employees, the Employment Development Department, the local workforce investment board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs;
  2. The employer gives as much notice as practicable and includes a brief statement on the basis for reducing the notification period;
  3. The termination, relocation, or layoff is caused by COVID-19-related business circumstances that were not reasonably foreseeable at the time notice would have been required (e., 60 days before); and
  4. For notices given after March 17, in addition to the usual contents of the notice, the employer must include the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”

The Executive Order directs the Labor and Workforce Development Agency to provide guidance for implementing these requirements.


The Executive Order does not completely suspend or waive Cal-WARN; rather, it provides a mechanism in line with the federal WARN Act that gives some relief to employers facing unforeseen business circumstances.  Employers must continue to evaluate potential obligations under both WARN and Cal-WARN.  Given the significant penalties for non-compliance, employers faced with closing a location or laying off employees (even for short periods) should consult legal counsel.

The Families First Coronavirus Response Act was passed by the Senate and signed by President Trump on March 19, 2020.  The Act provides for two paid leaves that employers across the United States must provide to employees in response to the coronavirus epidemic.  The Act is effective in 15 days and applies to employers with 1 to 499 employees – yes, you read that right, large employers with 500 or more employees do not have to comply with this law.  It expires on December 31, 2020.  The Act provides for two sources of paid leave: Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.

Emergency Paid Sick Leave Act (EPSLA)

Covered Employees: All employees.

Covered Employers: Employers with fewer than 500 employees.

Amount of Leave:

  • Full time employees: 80 hours of paid leave
    • Calculated at their regular rate of pay (as calculated by the FLSA) or the minimum wage, whichever is greater.
  • Part-time employees: Average number of hours worked over a two-week period.
    • If employee works a variable schedule, it is the average number of hours they worked per day over the previous six months. If the employee has not worked this long, it is the reasonable expectation of the employee at the time of hire of the average number of hours per day the employee would normally be scheduled.

The Emergency Paid Sick Leave Act sets forth six covered reasons qualifying for paid sick leave, and a corresponding rates of pay for the employee and a cap on payments to the employees depending on the reason for leave:

Covered Reason For Leave Rate of Pay Cap on Payments
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19 The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis. The employee’s regular rate of pay (as determined under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e)). $511 per day and $5,110 in the aggregate
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2). Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. Two-thirds of the employee’s regular rate of pay. $200 per day and $2,000 in the aggregate

Employers cannot require employees to use any other leave prior to using the Emergency Paid Sick Leave.

Notice requirements: Employers must post a notice in conspicuous places on the premises of a notice to be prepared by the Secretary of Labor.  The Secretary of Labor has 7 days after the enactment of the Act to make the notice publicly available.

The Act cannot not diminish the rights or benefits of employees provided under any other Federal, State, or local law, collective bargaining agreement, or existing employer policy.

Employers are not required to pay out any unused Emergency Paid Sick Leave at the end of employment.


Emergency Family and Medical Leave Expansion Act

Eligible employees: An employee who has been employed for at least 30 calendar days.

Covered employers: An employer with fewer than 500 employees.

Qualified reasons for paid FMLA leave: When the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency (with respect to a COVID-19 declared by a Federal, State, or local authority), the employee may take up to 12 weeks of leave.

Amount of paid leave:

  • First 10 days may be unpaid (but employee may use other paid leaves during this time)
  • Paid at no less than two-thirds of the employee’s regular rate of pay (as determined by the FLSA) and the number of hours the employee would normally be scheduled to work for up to 12 weeks.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.

Reinstatement rights:  Employees are entitled to reinstatement to the same position or an equivalent position, unless the employer employs fewer than 25 employees.  In that case, the employer must make reasonable efforts to provide the employee with a position or an equivalent position for 1 year after the “public health emergency concludes” or 12 weeks after commencement of the leave, whichever is earlier.

Exclusions: The Secretary of Labor has authority to issue regulations for good cause to exclude certain health care providers and emergency responders, and to exempt small businesses with few than 50 employees if requirements would “jeopardize the viability of the business as a going concern.”

The Act provides payroll tax credits granted to employers to offset the costs associated with these employer provided mandates.  This is a concern for many business owners, especially restaurant owners, who have been forced to close or substantially reduce their operations to take-out only, and now must find extra money for these payments and wait for a tax credit.

Updated March 22, 2019

In response to the coronavirus, many cities throughout California are issuing emergency orders and placing temporary restrictions on certain business, such as restaurants, bars, movie theaters, bowling alleys, arcades, and gyms.  Los Angeles City has issued an order to temporary close these type of establishments until March 31, 2020.  If an employer is temporarily closing its operations to comply with these orders, there are a few employment issues that must be considered:


There may not be a need to issue employees a paycheck at the time they are being informed of a temporary shutdown if the employer expects a continuing employment relationship.  But this issue is one that must be approached carefully.

Employers should make clear that the employment relationship is expected to continue, and should endeavor to provide an expected return date, subject to reconsideration as circumstances develop.

California Labor Code has very specific requirements regarding final pay checks for terminated employees.  Employers should consult legal counsel to ensure compliance with these requirements.

Filing for Unemployment Insurance

If an employer reduces hours or shut down operations due to coronavirus, employers can encourage employees to file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. The EDD’s website provides, “Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able, available, and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria.”  For more information, see: https://edd.ca.gov/Unemployment/Filing_a_Claim.htm

Paid Sick Leave Under State and Local Laws

Employees may be eligible to use paid sick leave under state and local law.  For example, California’s Labor Commissioner has issued FAQs on California’s paid sick leave law during the coronavirus epidemic and explains, “Paid sick leave can be used for absences due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee or the employee’s family member.  Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities.” For more information about California paid sick leave, see the Labor Commissioner’s FAQ here: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm.

Federal Bill: Families First Coronavirus Response Act

The U.S. House of Representatives passed the Family First Coronavirus Response Act the evening of Monday, March 16, 2020.  The bill, as currently drafted, requires employers to provide employees with two weeks of paid sick leave during the coronavirus epidemic, and also expands the Family and Medical Leave Act (FMLA) to provide up to 12 weeks of job-protected leave.  After the employee has taken the two weeks of paid leave, they will be able to take the additional FMLA leave at two-thirds of the employee’s usual pay.  The bill requires employers to pay the employees during these leaves, and then provides reimbursement of this cost through a refundable tax credit.  Some Senators have expressed concerns that the paid sick leave requirement will burden businesses too much during this already trying time.  The Senate is reviewing the bill this week.

[Our analysis of the final Family First Coronavirus Response Act signed by the President can be found here.]

On March 15, 2020, Governor Newsom called upon all bars, wineries, nightclubs, brewery tap rooms and other alcohol related venues to close.  While the order is not legally enforceable, employers in the state need to decide if they are going to close, and plan for potential closures in the near future.  California employers need to plan for and understand their obligations regarding wage and hour laws that will likely be issues during the next few weeks.

Must an employer pay an employee who cannot work during an emergency, such as during a government mandated shut-down?

Generally, there is no legal obligation for employers to pay employees if the business is shut down because of an Act of God (see below), or if an employee needs time off because of an evacuation order, to care for themselves, family members, or protect their property (except if it triggers paid sick leave under local or state law as discussed below).

However, if the employee is an exempt employee, generally, they must be paid their full weekly salary if they perform any work during the week.  There are some limited exceptions to this, but employers must approach this issue with caution.  Exempt employees must be paid their salary, and generally the only exception to this is if they perform no work for the entire workweek, and the reduction in pay for the week does not bring them under the salary threshold.

As for hourly, non-exempt employees, employers may permit employees to take any PTO or accrued vacation during times of disasters.  If the employee is sick or must attend to a family member who is sick as a result of the disaster, this time off would also likely trigger paid sick leave under state or local law.

Reporting time pay obligations

California law requires an employer to pay “reporting time pay” under the applicable Wage Order.  This requires that when an employee is required to report for work and does report, but is not put to work or is furnished less than half of the employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours, nor more than four (4) hours, at the employee’s regular rate of pay, which cannot not be less than the minimum wage.

In addition, if an employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for two hours at his or her regular rate of pay.

California’s Labor Commissioner provides the following example:

[I]f an employee is scheduled to report to work for an eight-hour shift and only works for one hour, the employer is nonetheless obligated to pay the employee four hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked.

Employers must remember, when an employee is scheduled to work, the minimum two-hour pay requirement applies only if the employee is furnished work for less than half the scheduled time.

Exceptions to the reporting time requirements – “Acts of God”

The Wage Orders provide that employers are not required to pay overtime pay during the following circumstances:

  1. When operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue; or
  2. When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities or sewer system; or
  3. When the interruption of work is caused by an Act of God or other cause not within the employer’s control, for example, an earthquake or a pandemic such as the coronavirus.

Time paid as reporting time pay does not trigger overtime pay

Reporting time pay for hours in excess of the actual hours worked is not counted as hours worked for purposes of determining overtime.

Is reporting time pay required if an employee voluntarily leaves work early?

Employers are not required to pay reporting time pay if the employee voluntarily leaves work early.  For example, if the employee must leave if they become sick, or must attend to personal issues outside of work and leaves early, then the employer is not obligated to pay reporting time pay (however, this may trigger paid sick leave or other legal obligations for the employer).

Below are some other resources my firm developed to aid employers during the coronavirus epidemic:

Video: Coronavirus: What California Employers Need to Know:

Coronavirus: What California Employers Need to Know

Employer Contingency Plans for Coronavirus:

Employer Contingency Plans for Coronavirus

Guidance on Preparing Workplaces for COVID-19:

Guidance on Preparing Workplaces for COVID-19

OSHA published “Guidance on Preparing Workplaces for COVID-19” to help companies respond to coronavirus in the workplace.  The resources can be downloaded here: https://www.osha.gov/Publications/OSHA3990.pdf

It is a great resource to help employers with planning for steps to take over the next few weeks.

OSHA recommends employers take infection prevention measures, which include:

Develop, Implement, and Communicate about Workplace Flexibilities and Protections

  • Actively encourage sick employees to stay home.
  • Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
  • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
  • Maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than is usual.

For more information on how California employers should respond to the coronavirus, our team has recorded a video discussing common questions facing employers, which can be viewed here: https://www.californiaemploymentlawreport.com/2020/03/coronavirus-what-california-employers-need-to-know/

Our prior article on Employer Contingency Plans for Coronavirus can be read here: https://www.californiaemploymentlawreport.com/2020/02/employer-contingency-plans-for-coronavirus/

Attorneys from our firm gathered for this Q&A on Friday, March 13, 2020 to discuss common questions facing California employers with the coronavirus epidemic.  We discuss the following topics:

  • Providing time off for employees due to school closures
  • Dealing with employee’s requests not to work
  • Masks in the workplace
  • Screening employees
  • WARN issues for mass layoffs
  • Wage and hour considerations

Employer Contingency Plans for Coronavirus:

Coronavirus Disease (COVID-19) – FAQs on laws enforced by the California Labor Commissioner’s Office: https://www.dir.ca.gov/dlse/2019-Novel-Coronavirus.htm

City of San Francisco’s FAQ on Paid Sick Leave & The Coronavirus:



By Michael Thompson

It’s time again for one quick action item you can accomplish to make your business safer than it was yesterday.  Today, we are tackling personnel files. Specifically, we are going to address requests by employees—or, more worrisome, the employee’s attorney—to inspect or receive a copy of the personnel file.

Our goal today is to save you $750 plus attorney’s fees, which represents the liability you potentially face for not timely responding to a personnel records request.

Labor Code section 1198.5 entitles “current and former employees, or his or her representative, the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee.” Employers must provide the personnel records within 30 days from the date the employer receives the request.

Frequently, these requests will come from a plaintiff’s attorney. It is potentially the first hint that you may be facing an employment lawsuit in the near future. The plaintiff’s attorney has two primary goals with this request.

First, the attorney may want to see the personnel records to evaluate whether to take the employee’s case.

Second, the attorney is hoping that you will blow that 30-day deadline. The penalty for doing so is $750, and the employee can also recover costs and reasonable attorney’s fees to enforce this right. (These requests will typically also request payroll records under Labor Code section 226, which comes with a separate $750 penalty for non-compliance. In that sense, we’re saving you $1,500 today.)

As if the $750 haircut weren’t bad enough, missing this deadline signals to the plaintiff’s counsel that your company is disorganized, dramatically increasing the likelihood the attorney will take the case.

Thirty days may seem like a long time, but if you are an employer with multiple locations, the request may take days or weeks to filter to the appropriate person (or get ignored entirely by someone unfamiliar with the law). Moreover, because that these requests often are a prelude to a lawsuit, you will want to give serious thought (and legal advice) on what to produce.

So today, you are going to develop and implement a written policy that designates a person or position (maybe you, maybe Human Resources, or maybe the general counsel) to receive these written requests. Subsection (f) of section 1198.5 permits the employer to “designate the person to whom a request is made.”

The designated person or position should be familiar with the requirements of section 1198.5 and have authority to act quickly, either to respond to the request directly or to engage legal counsel. With this policy in place, you can avoid delays in acting on a request, put your best foot forward in response, and keep that $750.

Congrats, you took a concrete step today to protect your business.  See you next week.

As a preview to my Firm’s seminar next Thursday on how to conduct workplace investigations (information and registration is at this link), this Friday’s Five lists five action items employers should utilize when conducting harassment investigations:

1. Selecting the investigator

Employers should take time to train an in-house person who can conduct harassment investigations.  This person, usually someone from Human Resources (but it does not need to be) should have additional experience and training about how to investigate these claims.  First, the person needs to be able to conduct appropriate investigations to limit the liability to the company.  Second, the person’s experience and training will likely be closely examined, if not challenged by opposing counsel if the case develops into litigation.  Therefore, someone with experience and who is well credentialed is preferred.

2. The investigation must be free of any appearance of influence or bias

The investigator must not have any personal involvement with any of the parties who are a part of the investigation.  To avoid any appearance of undue influence, the investigator must not be subject to any control or supervisory control from the alleged harasser.  This means that for smaller companies, or in cases where the owner or president of the company is alleged to have harassed someone, it is recommended that an outside third-party that is independent from the company be hired to conduct the investigation.

3. The investigation must ask the right questions

The EEOC provides the following examples of questions to ask during a sexual harassment investigation:

Questions to Ask the Complainant:

  • Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
  • How did you react? What response did you make when the incident(s) occurred or afterwards?
  • How did the harassment affect you? Has your job been affected in any way?
  • Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
  • Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • How would you like to see the situation resolved?
  • Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

  • What is your response to the allegations?
  • If the harasser claims that the allegations are false, ask why the complainant might lie.
  • Are there any persons who have relevant information?
  • Are there any notes, physical evidence, or other documentation regarding the incident(s)?
  • Do you know of any other relevant information?

Questions to Ask Third Parties:

  • What did you see or hear?
  • When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
  • What did the complainant tell you?
  • When did s/he tell you this?
  • Do you know of any other relevant information?
  • Are there other persons who have relevant information?

4. The investigator must make credibility assessments

The EEOC again provides some guidance on the factors to use when determining which witnesses are more credible:

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Did the person seem to be telling the truth or lying?
  • Motive to falsify: Did the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

5. The investigation’s final determination

After making credibility determinations and evaluating the facts, management of the company must make a determination about whether or not the harassment occurred.  The parties should be informed of the determination.  Even if the employer determines that harassment did not occur, the EEOC takes the position that the employer should take steps such as preventative training and continued monitoring.  For example, even though the underlying harassment may not have occurred, a supervisor could still be held liable for retaliating against the employee who filed the harassment complaint.  Therefore, it is important for employers to inform the parties involved of the outcome, unacceptable behavior as a result of the determination, and to ensure ongoing compliance with the company’s findings and legal obligations.